Orrill v. Orrill, 6727

• Decision Date: 09 September 1954
• Docket Number: No. 6727,6727
• Citation: 271 S.W.2d 173
• Parties: Mrs. Jennie ORRILL, Appellant, v. Houston ORRILL et al., Appellees.
• Court: Texas Court of Appeals

Page 173

271 S.W.2d 173

Mrs. Jennie ORRILL, Appellant, v. Houston ORRILL et al., Appellees.

No. 6727.

Court of Civil Appeals of Texas, Texarkana.

Sept. 9, 1954.

Traylor Russell, Mt. Pleasant, for appellant.

R. T. Wilkinson, Mt. Vernon, for appellees.

FANNING, Justice.

This is a partition suit on approximately 91 acres of land in Franklin County, Texas. Z. Orrill and wife, ancestors of appellees, owned the land except 10 acres which were purchased by S. H. Orrill, father of appellees, from Talbott and wife on January 4, 1905. Z. Orrill and wife died intestate long prior to 1900 and were survived by four children, namely: G. F. Orrill, Louis Orrill, Mrs. M. J. Sustaire and S. H. Orrill. S. H. Orrill was first married to Annie Rozier Orrill and to this marriage there were born five children, namely: Houston Orrill, Cynthia Fenn, Ruby Spruill, Maggie Reid and Willie Allen. who were plaintiffs in the trial court and are appellees here. Annie Rozier Orrill died intestate on April 21, 1900, and was survived by her husband, S. H. Orrill, and the five children. S. H. Orrill married Jennie Orrill on September 23, 1900, and to this marriage was born one child, Vera Jackson. S. H. Orrill died intestate on May 14, 1930, and was survived by the five children of his first marriage, the child of his second marriage, and his second wife. The defendants in the trial court were the second wife, Jennie Orrill, and Vera Jackson, the only child of the second marriage.

By deed dated December 1, 1902, G. F. Orrill and Louis Orrill conveyed to S. H. Orrill their interest in the lands they inherited from their deceased father, Z. Orrill, and mother, for a cash consideration of $500. On December 12, 1903, Mrs. M. J. Sustaire, joined by her husband, conveyed her interest in the lands which she inherited from her parents to S. H. Orrill for a cash consideration of $300. On January 4, 1905, Talbott and wife conveyed to S. H. Orrill 10 acres of land for a cash consideration of $125. On January 4, 1905, S. H. Orrill and wife, J. M. (Jennie) Orrill, conveyed to Talbott 8 3/4 acres for a cash consideration of $125. This 8 3/4 acre tract was a part of the lands originally owned by Z. Orrill and wife, and in which S. H. Orrill inherited a 1/4 interest, and purchased a 3/4 interest from his brothers and sister. The lands that were the subject-matter of the suit were the 10 acres purchased from Talbott, and the Z. Orrill lands, less the 8 3/4 acres conveyed to Talbott. The trial court held that the 10 acres was community property of S. H. Orrill and wife, Jennie Orrill; and in response to answers made by the jury to the two special issues submitted, the court entered judgment to the effect that the remaining lands were owned by S. H. Orrill and the children of the first marriage, and specifically the judgment awards to each plaintiff 1 1/60 in the so-called Z. Orrill lands and defendant Vera Jackson, a 1/12 interest in the same lands. In the 10 acres purchased from Talbott, Jennie Orrill is award a 1/2 interest and each plaintiff and Vera Jackson a 1/12 interest. Jennie Orrill was awarded a homestead interest in the 10 acres and 5/8 of the so-called Z. Orrill lands with partition ordered for the remaining lands. Mrs. Jennie Orrill is very aged and mentally unbalanced, and the attorney presenting her appeal was appointed by the court to represent her. Her motion for new trial and for judgment non obstante veredicto were overruled and she appeals.

Appellant presents two points which are as follows: 'First Point: S.H. Orrill and the appellant, Jennie Orrill, having married in 1900, lands purchased by S. H. Orrill in 1902 and 1903 are presumptively community property, and the fact that S. H. Orrill was a person of limited means would not be sufficient evidence to rebut the presumption of community property to the extent that judgment could be entered to the effect that separate funds of S. H. Orrill and appellees were used in the purchase of the lands. Second Point: S. H. Orrill and the appellant Jennie Orrill, husband and wife on December 1, 1902, conveyed certain lands which were the separate property of S. H. Orrill and the children of his first marriage and received as consideration therefor $600.00 cash and one (1) vendor's lien note for $400.00, due December 1, 1903, a jury finding that the proceeds of the vendor's lien note were used by S. H. Orrill on December 12, 1903, to buy an undivided one-fourth (1/4) interest in certain lands in the absence of any evidence that the proceeds were so used, could not be upheld inasmuch as to do so would be basing one presumption on another presumption.' Appellee presents his counter point thereto as follows: 'The testimony in the case is sufficient to support the verdict and finding of the jury; that the consideration of five hundred dollars in cash paid by S. H. Orrill to G. F. Orrill and Louis Orrill and the $300.00 cash paid by Mrs. Sustaire by S. H. Orrill was proceeds of the amount received from Lee Rozier as purchase price for the land he bought from S. H. Orrill, said land being the community property of the first marriage.'

Special Issue No. 1, which was answered 'Yes' by the jury, reads as follows: 'Do you find from a preponderance of the evidence in this case that the amount of cash to the extent of $500.00 received by S. H. Orrill in the sale of the property to Lee Rozier as shown by a deed dated December 1, 1902, recorded in Volume Q, Page 115, Deed Records of Franklin County, Texas, and offered in evidence before you, was used in the purchase of the land described in the Deed dated December 1, 1902, from G. F. Orrill and Louis Orrill to S. H. Orrill?'

Special Issue No. 2, which was answered 'Yes' by the jury, reads as follows: 'Do you find from a preponderance of the evidence in this case that the amount of cash to the extent of $300.00 received by S. H. Orrill in the sale of the property to Lee Rozier was shown by a deed dated December 1, 1902, Recorded in Volume Q, Page 115, Deed Records of Franklin County, Texas, and a note therein described, of fered in evidence before you, was used in the purchase of the land described in the deed dated December 12, 1903, from Mrs. S. T. Sustaire to S. H. Orrill?'

On the 1st day of December, 1902, S. H. Orrill was in possession of 106 1/2 acres of land, which he bought while living with his first wife, the mother of the plaintiffs, and concededly community property of the first marriage, by deed from G. M. Northam and wife to S. H. Orrill dated September 7, 1899. The land bought from Northam before the death of the first wife was sold to Lee Rozier on the 1st day of December, 1902, for a recited consideration of $600 cash and one note for $400 due ...